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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number: EB-02-BF-
Tennessee Gas Pipeline Company ) 399
Owner of Antenna Structure # )
1009025 ) NAL/Acct. No.
Syracuse, New York ) 200332280007
FRN: 0001 6428 83
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 12,
By the Resident Agent, Buffalo Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Tennessee Gas Pipeline
Company (Tennessee Gas), owner of antenna structure
#1009025, has apparently violated Section 17.4(a) and 17.50
of the Commission's Rules1 (``Rules'') by failing to
register the tower, and by failing to clean and repaint its
antenna structure to maintain good visibility. We conclude
that Tennessee Gas is apparently liable for a forfeiture in
the amount of thirteen thousand dollars ($13,000).
2. On October 31, 2002, an agent of the Commission's
Buffalo Office inspected the antenna structure bearing FCC
antenna structure registration (``ASR'') #1009025 and
located near Syracuse, New York. At the time of inspection,
the tower's paint was chipped and faded, reducing the
visibility of the structure. The paint was severely
peeling, and the red lighting had been replaced by a white
strobe. The coordinates observed during inspection did not
correspond to the tower in the FCC database with that ASR
3. On November 5, 2002 agent Stanbro phoned Tennessee
Gas and spoke to Mr. Richard Nation of El Paso Corporation
about the painting and lighting requirements for tower
1009025. Mr. Nation stated he would check the ARS Database
for corrections, and that he thought Tennessee Gas Pipe Line
had applied with the FAA for modification of the painting
and lighting on tower 1009025. The agent asked Mr. Nation
about the tower coordinates, and Mr. Nation stated he was
sure the coordinates were correct.
4. On November 12, 2002 Mr. Nation phoned and advised
agent Stanbro that he was unable to find any record of
applying for a painting and lighting modification with the
FAA. At that time he gave agent Stanbro the current address
for correspondence with Tennessee Gas. On November 13 2002,
the Buffalo Office issued a Notice of Violation (``NOV'') to
Tennessee Gas citing violation of Sections 1.5, 17.50, and
17.57 of the Rules2.
5. On November 25, 2002, the Buffalo Office received
a reply from Mr. Nation of El Paso Corp. The reply stated
that Tennessee Gas, a subsidiary of El Paso Corp., still
owned tower 1009025 so, in their view, there was no
violation of Section 17.57. Further, he stated that
Tennessee Gas had installed medium intensity strobe
lighting, which was intended to supercede the beacon and
painting requirement. The FAA Eastern Region office does
not have a record of any submission of a Notice of Proposed
Construction or Alteration to change the markings.
Tennessee Gas had not taken appropriate steps to secure a
new determination of No Hazard from the FAA that would
endorse the installation of medium-intensity strobe lights
in place of the painting and beacon requirement. The
necessary Notice of Proposed Construction or Alteration was
transmitted to the FAA on November 21, 2002.
6. On December 30, Agent Stanbro talked with Mr.
Nation, requesting a faxed copy of paperwork filed with the
FAA. Mr. Nation faxed the modification paperwork, and
confirmation from the Federal Aviation Administration.
7. On February 13, 2003 Agent Stanbro rechecked the
coordinates for tower 1009025, and measured them as Lat: 42
56 26N and Long 076 06 52W. The coordinates, taken at the
entrance gate to the tower approximately one hundred feet
from the tower base, differ from the coordinates of 42 56
33.2N x 076 07 0.7W on the Federal Communication's Antenna
Structure Registration Database and the FAA Form 7460-1
filed with the Federal Aviation Administration by over a
tenth of a mile. On February 18, 2002 Mr. John Brenner,
surveyor for El Paso Corp., phoned agent Stanbro to advise
of the new coordinates, 42 56 28N / 076 06 53.4 W, and said
he would email a statement to agent Stanbro to that effect.
These coordinates differ 0.144 miles (760 feet) from the
coordinates registered with the Federal Aviation
Administration and the Federal Communications Commission by
8. Section 17.4(a) of the Rules requires the owner of
an existing or proposed tower that requires notice of
proposed construction to the Federal Aviation Administration
must register the structure with the Commission. All
information provided to the Federal Aviation Administration
and Federal Communication Commission must be accurate. At
the time of inspection, the FCC database showed there was no
tower registered at or near the coordinates measured by the
agents and verified by the surveyor employed by the owner.
9. Section 17.50 of the Rules states that antenna
structures requiring painting under this
part shall be cleaned or repainted as often as necessary to
maintain good visibility. At the time of inspection,
Tennessee Gas's tower paint visibility had deteriorated over
time to the point of being a hazard to air navigation. They
had not filed a modification application with the FAA to
discontinue painting and lighting specifications shown on
10. Based on the evidence before us, we find that
Tennessee Gas willfully3 and repeatedly4 violated Sections
17.4(a) and 17.50 of the Rules by failing to properly
register their tower, and by failing to repaint the tower to
maintain good visibility. The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')5, sets the base forfeiture
amount at $3,000 for failure to file the required forms or
information, and at $10,000 for failure to comply with
prescribed lighting and/or marking requirements. In
assessing the monetary forfeiture amount, we must take into
account the statutory factors set forth in Section
503(b)(2)(D) of the Communications Act of 1934 (``Act''), as
amended6, which include the nature, circumstances, extent,
and gravity of the violation, and with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement and
the statutory factors listed above, and applying the
inflation adjustments, we believe that a thirteen thousand
dollar ($13,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act7, and Sections 0.111, 0.311 and
1.80 of the Rules8, Tennessee Gas Pipeline Company is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of thirteen thousand dollars ($13,000) for willful
and repeated violation of Sections 17.4(a) and 17.50 of the
12. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, Tennessee Gas Pipeline
Company, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. 200332280007 and
FRN: 0001 6428 83.
14. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. 200332280007.
15. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
16. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Federal Communications Commission, Chief,
Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.9
17. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical and
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail,
Return Receipt Requested, to Tennessee Gas Pipeline Company,
1001 Louisiana, Houston TX 77002.
Gene J. Stanbro
Attachment A: Condensed List of Small Entities.
1 47 C.F.R. §§ 17.4(a) and 17.50.
2 47 CFR §§ 1.5 and 17.57.
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provide that
``the term `willful', when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective
of any intent to violate any provision of this Act....''
See Southern California Broadcasting Co., 6 FCC Rcd 4387
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference
to the commission or omission of any act, means the
commission or omission of such act more than once or, if
such commission or omission is continuous, for more than one
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111 and 0.311.
9 See 47 C.F.R. § 1.1914.